Nisbet v Police [2014] NZHC 3101 (5 December 2014)

Last Updated: 13 February 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000296 [2014] NZHC 3101

JAMES WILLIS PARORE NISBIT Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	1 December 2014
Appearances:	Peter Eastwood for the Appellant Tracey Hu for the Respodent
Judgment:	5 December 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 5 December 2014 at 2:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

NISBIT v NEW ZEALAND POLICE [2014] NZHC 3101 [5 December 2014]

Introduction

[1] A little after midnight on 29 December 2013 the appellant, James Willis

Parore Nisbit, was stopped at a Police check point. His breath was found to contain

1,013 micrograms of alcohol per litre of breath (“µg/L”)which is two and a half times the legal limit of 400 µg/L.

[2] He was charged with driving with excess breath alcohol (third or subsequent). This charge was laid because Mr Nisbit had been convicted on four previous occasions of driving with excess breath alcohol. Details of these convictions are set out below:

(a) In 2009 with 1,073 µg/L, sentenced to 350 hours community work and indefinite disqualification (which ended on 12 February 2010 as a result of a sentence review).

(b) In 2006 with 539 µg/L, sentenced to 150 hours of community work and indefinite disqualification (which ended on 8 November 2011 after final warning given). This offending occurred while Mr Nisbit was disqualified from driving as a result of his 2005 conviction for driving with excess breath alcohol.

(c) In 2005 with 1,185 µg/L, sentenced to 150 hours of community work, indefinitely disqualified (until 8 November 2006). This offending occurred while Mr Nisbit was disqualified from driving.

(d) In 2002 with 834 µg/L, sentenced to three months’ periodic detention,

disqualified from driving for six months.

[3] A little over two months later Mr Nisbit’s ex-partner obtained a protection order against him. At the time Mr Nisbit was on bail on a charge of male assaults female. The complainant was Mr Nisbit’s ex-partner.

[4] Two months after the protection order was made Mr Nisbit approached his ex-partner’s home. She saw him outside but before opening the door she retrieved

her copy of the protection order and called the Police. When she opened the door she told Mr Nisbit to leave to which he responded, “I hate you. Pay back is a bitch.” He then grabbed the protection order out of her hands, tore it into pieces and dropped it to the ground. On being told that she had called the Police Mr Nisbit responded, “So what?”.

[5] The Police arrived. Mr Nisbit was arrested and charged with breaching the protection order.

[6] For the purposes of this appeal it is helpful to set out the procedural history of these charges.

(a) On 26 February 2014 Mr Nisbit made his first appearance on the excess breath alcohol charge. He pleaded guilty and was remanded for a pre-sentence report to be prepared.

(b) On 7 May 2014 he was interviewed for the purposes of the pre- sentence report.

(c) On 16 May 2014, five days after the altercation with his ex-partner which led him to be charged with breaching the protection order, Mr Nisbet appeared in the Auckland District Court on both charges. He entered a plea of guilty to breaching the protection order. A new pre-sentence report was requested and enquiries were carried out as to whether a suitable home detention address might exist.

(d) On 25 June 2014 the probation officer attempted to conduct the pre- sentence interview with Mr Nisbit in relation to the excess breath alcohol charge. Mr Nisbit declined to answer any questions, stating he preferred to speak to his lawyer and consider time served.

District Court decision

[7] Mr Nisbit appeared in the District Court on 24 July 2014 for sentence on both charges.

[8] The Judge noted that Mr Nisbit had four previous convictions for driving with excess breath alcohol and that he presented a serious danger to other road users. He also noted previous convictions for male assaults female and 14 breaches of various Court orders. His Honour noted that Mr Nisbit had declined to participate in the second pre-sentence report interview and that his non-involvement may have been due to the fact that there was no suitable address for an electronically- monitored sentence.

[9] The Judge commented that the pre-sentence report recommended a “purely punitive sentence for the driving with excess breath alcohol” noting that at the time the report was prepared the breach of the protection order had not occurred.

[10] His Honour recorded that any sentence for recidivist drink driving along with the breaching of protection orders must be denunciative and deterrent recognising the need to protect the community, particularly in the context of repeated drink driving.

[11] He noted that the least restrictive outcome was imprisonment. Amongst the aggravating features listed were that Mr Nisbit was on bail when he breached the protection order, and his previous convictions (for both protection order breaches and driving with excess breath alcohol).

[12] The Judge commented that even if a suitable address for an electronic sentence was available it was unlikely he would have imposed it given the long history of breaches of Court orders.

[13] A starting point for the breath alcohol charge of 10 months was set. This was uplifted by five months having regard to the high breath alcohol level and the previous convictions. This brought the total starting point to 15 months. In relation to the breach of the protection order his Honour imposed a further nine months in recognition of the previous offending and the serious nature of the index offending. This resulted in a starting point of 24 months which he discounted by the full 25 per cent in recognition of Mr Nisbit’s early pleas of guilty.

[14] Additionally, on the excess breath alcohol charge, he imposed the standard release conditions as well as special release conditions and imposed an indefinite disqualification under s 65 of the Land Transport Act 1988 (“the LTA”). He declined Mr Nisbit’s application for an alcohol interlock licence under s 65A of the LTA.

Grounds of appeal

[15] Mr Nisbit appeals his sentence on the following grounds:

(a) that the end sentence of 18 months’ imprisonment was manifestly

excessive:

(i) the sentences for the two offences should have been imposed concurrently, not cumulatively; and

(ii) that a community-based sentence should have been imposed or at least, that the Judge should have granted leave to apply for home detention under s 80A of the Sentencing Act 2002;

(b) that the Judge should have remanded the matter for home detention appendices to be obtained. The Judge misinterpreted the appellant’s reasons for declining to be interviewed for the home detention appendix.

[16] In the course of the appeal Mr Eastwood, for Mr Nisbit, did not advance the appeal in relation to the Judge’s refusal to consider home detention. This was on the entirely practical basis that he not have instructions to do so coupled with the fact that Mr Nisbit does not have access to any address which might be regarded as suitable for home detention nor is there any realistic prospect in the future that such an address may become available.

[17] Thus the appeal proceeded on the basis that the sentence of 18 months’

imprisonment was manifestly excessive.

Approach on appeal

[18] This is an appeal against sentence. Section 250 of the Criminal Procedure Act 2011 provides that the Court may only allow an appeal against sentence if the Court is satisfied that:

(a) for any reason there was an error in sentence imposed conviction; and

(b) a different sentence should be imposed.

[19] It is only if both grounds are satisfied that an appeal should be allowed. In any other case the Court must dismiss the appeal.¹

Was the starting point manifestly excessive?

[20] In considering this issue it is necessary to examine the appropriate starting points for both charges.

Driving with excess breath alcohol (third or subsequent)

[21] This offence carries a maximum penalty of two years’ imprisonment, a fine of $6,000 and a minimum period of disqualification of 12 months.² Mr Nisbit has four previous convictions for driving with excess breath alcohol. Two of these involve breath alcohol levels well in excess of twice the legal limit.

[22] Additionally, Mr Nisbit has traffic convictions for driving whilst disqualified

(x 4), unlicensed driver (x 2), dangerous driving and careless driving.

[23] In Clotworthy v Police Wild J listed 10 factors which he regarded as relevant in assessing the appropriate sentence for driving with excess breath alcohol. These are as follows:³

(a) the breath or blood alcohol level;

¹ _{Criminal Procedure Act 2011, s 250(3).}

² _{Land Transport Act 1988, ss 11(b), 56(2) and (4)(a) and (b).}

³ Clotworthy v Police (2003) 20 CRNZ 439.

(b) the length of time which has elapsed since the last drink driving conviction;

(c) conviction for two or more drink driving offences in close succession; (d) the manner of driving;

(e) whether the offender was disqualified or forbidden from driving at the time;

(f) what the plea was and when the conviction was entered;

(g) the sentences imposed for previous excess breath alcohol offences; (h) the offender’s record for other types of offending;

(i) any genuine remorse or steps taken for rehabilitation; and

(j) any mitigating personal or family circumstances. [24] Applying those factors to the present case:

(a) the breath alcohol level of 1013 µg/L is extremely high;

(b) Mr Nisbit’s last drink driving conviction was in April 2009. His excess breath alcohol convictions have accrued on a reasonably regular basis since 2002. Two of the previous convictions involved levels in excess of 1,000 µg/L;

(c) the conviction is not in particularly close succession to the previous like offences although the relative regularity of the previous convictions has already been noted;

(d) it does not appear that Mr Nisbit was driving in a fashion which brought him to the attention of the Police;

(e) he entered a plea of guilty at the first opportunity;

(f) he has been disqualified on numerous previous occasions;

(g) it is uncertain what the pleas entered on the previous occasions were but the details of when the convictions were entered is set out above;

(h) Mr Nisbit has not previously received a sentence of imprisonment but, it would appear, previous community-based sentences have failed to deter him from re-offending in the same way;

(i) he has multiple previous convictions for driving offences including driving whilst disqualified/prohibited driver;

(j) his record for other types of offending is discussed above; and

(k) on the question of whether Mr Nisbit exhibits genuine remorse or any steps taken for rehabilitation, the first pre-sentence report recorded that he stated he had not drunk alcohol during the previous two years but on the night of the offence had been drinking with a friend. He is to graduate from a three month alcohol treatment programme on 5

December 2014. While this may show some willingness to confront his alcohol-based problems the previous sentences imposed with a rehabilitative focus have failed to address his alcohol issues.

[25] At the time of the offending it is noteworthy that Mr Nisbit was on bail for the assault on his former partner which led to the issuing of the protection order. This factor was not taken into account by the sentencing Judge.

[26] Mr Eastwood, for Mr Nisbit, has referred me to a number of cases which he submits support his proposition that a starting point of 15 months’ imprisonment on the excess breath alcohol charge was outside the available range.

[27] He submits that Coles v Police is such a case.⁴ There the appellant was stopped with a breath alcohol reading of 667 µg/L. It was his fourth conviction within two and a half years. The previous convictions involved alcohol levels of 482 and 597 µg/L. Panckhurst J considered that the sentence of eight months’ imprisonment was too high and reduced it to five months.

[28] The other decision Mr Eastwood relies on is Carran v Police where the appellant was convicted of driving with 1,266 µg/L.⁵ He had four previous convictions for the same offence. He was sentenced to seven months’ imprisonment. On appeal Whata J quashed the sentence of imprisonment and substituted a term of community work noting that the previous convictions were largely historic (1985,

1988, 1993 and 2003) and that recidivist offending marked by lengthy intervals normally attracted a non-custodial sentence. Whata J considered that the offending had been separated by 10 year gaps and this was relevant in the sense that while the appellant was a recidivist drink driver he did not show contumelious disregard for drink driving laws.

[29] However, in my view, these decisions can be distinguished by reference to the factors listed in Clotworthy. In Coles the level of alcohol and the past offending was much more modest than in the present. In Carran the offending was separated by significant periods of compliance with the consequence the offender was regarded as not posing a high level of danger to others or demonstrating such a flagrant disregard for the law. This is an important distinction given that in the present case the sentencing Judge considered that the recent convictions (in 2005 and 2009) meant that Mr Nisbit continued to pose a danger to the public.

[30] Ms Hu, for the respondent, referred me to Spooner v Police where, as in the present case, the appellant pleaded guilty to his fifth drink driving charge.⁶ His breath alcohol level was 887 µg/L. His previous convictions were mostly historic. With the exception of a conviction three years before in 2007 his other, relevant,

_{previous convictions were in the 1990s. Furthermore, compared with the three}

⁴ _{Coles v Police HC Auckland CRI-2007-409-161, 23 August 2007.}

⁵ _{Carran v Police [2013] NZHC 1450.}

⁶ Spooner v Police HC Rotorua, CRI-2010-463-55, 31 August 2010.

highest alcohol levels associated with Mr Nisbit’s previous convictions, the breath alcohol levels in Spooner were a good deal more modest.

[31] On appeal the Judge’s starting point of 18 months’ imprisonment, while

regarded as severe, was upheld with Woodhouse J observing at [4]:

It is entirely correct that three of the four previous offences are what might be called ‘historic’. But the fact that they are old does not mean they can be ignored. They must be brought into account. But the dates of the earlier offending are relevant to an assessment of the current offending. The points that go most strongly against Mr Spooner, in addition to the list of previous convictions, including while driving disqualified, are the reasonably recent excess breath alcohol offence in April 2007 and what is essentially a contemptuous attitude to the law and indifference to his responsibilities as a driving. The observations I have quoted from the pre-sentence report are a real concern.

[32] While I accept that Mr Nisbit does not demonstrate comparable levels of arrogance nor does he attempt to minimise his offending, I cannot ignore the very high breath alcohol levels which characterise his present and past offending. Nor is the offending as historic as that in Spooner.

[33] In the present case the Judge adopted a starting point of 10 months. However, through the five month uplift given for the previous drink driving offending and the level of alcohol involved, he effectively adopted a starting point of

15 months. Both of these factors are included in the Clotworthy factors and are necessarily implicit in the starting point.

[34] A useful comparison which, in my view, demonstrates that an effective starting point of 15 months’ imprisonment was outside the range available to the sentencing Judge is Lang J’s judgment in Aleluia v Police.⁷ There a starting point of

12 months in relation to a third drink driving offence was regarded as at the top end but not manifestly excessive. The appellant’s breath alcohol reading was 755 µg/L.

_{He had four previous convictions.}

⁷ Aleluia v Police [2014] NZHC 40.

[35] Further confirmation is found in the judgment of Woolford J in Black v Police.⁸ The appellant was seen to be driving erratically. When stopped and breath tested the appellant returned a reading of 1,247 µg/L. She had two previous convictions in 2005 and 2010. The sentencing Judge adopted a starting point of 15 months. Woolford J held this to be manifestly excessive and that an appropriate starting point for similar offending was eight months’ imprisonment.

[36] Black is very similar to the present offending. However, in the present case there was no evidence of erratic driving and the previous offending was broadly similar, including the breath alcohol levels. In my view, on the authority of Aleluia and Black particularly, an appropriate starting point in the present case was eight months’ imprisonment. To this a one month discount should have been given for completing the drug treatment and alcohol programme while in prison. A further discount of 25 per cent, as adopted in the District Court, should be applied for the guilty plea resulting in an end sentence of five months’ imprisonment.

Starting point for breach of protection order

[37] There is no tariff case for breaching a protection order.

[38] Mr Nisbit was sentenced to 150 hours community work and six months’ intensive supervision (to commence on 4 March 2014). He was still subject to the intensive supervision order when he breached the protection order. This fact does not appear to have been taken into account by the sentencing Judge although he did note that the offending occurred while Mr Nisbit was on bail for the excess breath offending.

[39] The purpose of protection orders is apparent from s 5 of the Domestic Violence Act 1995 which empowers the Court to make orders to protect victims of domestic violence and to provide more effective sanctions and enforcement in the

_{event that a protection order is breached.}⁹

⁸ _{Black v Police [2012] NZHC 1694.}

⁹ Domestic Violence Act 1995, s 5(2)(a) and (e).

[40] These purposes and the sanctions provided for have been earlier discussed by this Court and the Court of Appeal.¹⁰

[41] The starting point of nine months’ imprisonment was well within the Judge’s

sentencing discretion.¹¹

Should the sentences have been imposed cumulatively?

[42] In this Court Mr Eastwood advised that he had “no real instructions to advance an appeal against the protection order other than to argue it could have been a concurrent sentence”.

[43] I do not agree it was appropriate to make the sentences concurrent. Section

84 of the Sentencing Act 2002 makes it clear that cumulative sentences are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences. That provision provides some guidance in relation to whether two or more offences are to be regarded as a connected series of offences. Section 84(3) provides that the Court may consider:

(a) the time at which the offences occurred; or

(b) the overall nature of the offending; or

(c) any other relationship between the offences that the Court considers relevant.

[44] Plainly the charge of excess breath alcohol and breach of a protection order are offences which are different in kind. Furthermore they were committed at different times.

[45] The Judge was entirely correct when he ordered the sentences to be served cumulatively.

¹⁰ Police v Tule HC Rotorua, AP87/02, 10 October 2002 at [14]; R v Cartwright CA175/02, 28 August

_2002.

¹¹ Mam v Department of Corrections HC Christchurch, CRI-2011-409-111, 1 December 2011.

[46] The result is that the sentence of five months’ imprisonment for the drink driving charge should be cumulative with the six months’ imprisonment for the breach of the protection order. This results in an effective end sentence of 11 months’ imprisonment.

Did the Judge err in not imposing home detention?

[47] As noted earlier in this judgment Mr Eastwood did not advance this ground in the course of argument. However, for completeness, I shall deal with this issue.

[48] In his written submissions, Mr Eastwood submits that the sentence of imprisonment was wrongly imposed. In support of this submission he refers to the judgment of Millar J in McIntyre v Police where, in relation to a fifth conviction for driving with excess breath alcohol a sentence of 250 hours’ community work, six months’ supervision and 14 months’ disqualification was imposed.¹² In the present case no second home detention report was obtained and thus the suitability of Mr Nisbit’s address was not considered. Mr Eastwood submits that this was due to a misunderstanding on Mr Nisbit’s part because the first pre-sentence report noted that

there were no apparent issues identified with Mr Nisbit completing a community- based sentence or home detention.

[49] However, against this proposition is the Court of Appeal’s decision in R v McQuillan where that Court observed that imprisonment is now the usual, if not necessarily the inevitable, consequence of recidivist drink driving offending.¹³ While I accept that this statement does not amount to a presumption of imprisonment it does demonstrate that imprisonment is the exception. Imprisonment must always represent a very real possibility for those who engage in repeated drink driving.

[50] The primary issue, as is made clear in s 16(2)(c) of the Sentencing Act 2002 has to be whether imprisonment is the least restrictive option. In this case that is, to some extent, difficult to determine because no pre-sentence report was provided

_{directly addressing this issue. However, based on Mr Eastwood’s advice that}

¹² _{McIntyre v Police [2013] NZHC 268.}

¹³ R v McQuillan CA129/4, 12 August 2004 at [20].

Mr Nisbit has no available address nor any prospect of having such an address the question is somewhat academic.

[51] Furthermore, I note the Judge’s observation that while there was no electronic address available it was, in any event, unlikely he would have imposed home detention given the extensive history of breaches of previous sentences. I agree. In the circumstances, commuting the sentence of imprisonment to home detention would not have been appropriate given Mr Nisbit’s well proven past failure to comply with Court orders.

Result

[52] The appeal is allowed. The sentence of 18 months’ imprisonment for driving with excess breath alcohol (third or subsequent) cumulative on the breach of a protection order is quashed. A sentence of five months’ imprisonment on the drink driving charge and six months’ imprisonment on the breach of the protection order is substituted. These sentences are to be served cumulatively so the end sentence is 11 months’ imprisonment. All other sentences and orders imposed in the District Court

_remain.

Moore J

Solicitors:

Mr Eastwood, Auckland

Crown Solicitor, Auckland